Lamptey v Tagoe (A9/120/24) [2025] GHADC 134 (17 March 2025)

IN THE KOTOBABI DISTRICT COURT 1, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON MONDAY 17TH MARCH, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS). SUIT NO: A9/120/24 ISABELLA BEATRICE ODORKOR LAMPTEY - PLAINTIFF NO. B 10924/4 MATAHEKO ACCRA VS. JAMES TAGOE - DEFENDANT ACCRA PARTIES: Plaintiff present Defendant present COUNSEL: Stephans Ahene-Truny Esq. holding the brief of Andrew Anane-Darko Esq for Plaintiff present Kwesi Otoo Esq for Defendant present JUDGMENT PROCEDURAL BACKGROUND The instant action was commenced on 1st November 2023 by reference to a rent magistrate under Regulation 13 of the Rent Regulations, 1964. The Rent Officer in his recommendations on the said reference prayed for the following orders: a) To cause Respondent (i.e. Defendant herein) to vacate the property with immediate effect for Complainant’s personal use. Isabella Beatrice Odorkor Lamptey vs. James Tagoe 1 b) To cause Respondent (i.e. Defendant herein) to settle Thirty-Four Thousand Five Hundred and Eight-Six Ghana Cedis (GHC 34,586.00) being accrued rent arrears as at September, 2023 to Complainant (i.e. Plaintiff herein) forthwith. c) Make such orders as to costs or in connection with proceedings. Initially the said reference to the rent magistrate was filed in the Adabraka District Court 2 (formerly Kaneshie District Court 2). However, before the matter was determined by my sister at the Adabraka Court, the suit was transferred to this Court to continue with the hearing and determination by order of the Honourable Chief Justice dated 16th January, 2024. Thereafter, this Court initially directed parties to file their pleadings in respect of the matter and Plaintiff filed her statement of claim on 27th March, 2024 while Defendant filed his response on 16th May, 2024. Having however considered the respective claims of the parties from the pleadings and having also considered the proceedings that were conducted at the Rent office, I was of the view that this matter could be determined summarily without going into a full trial. This is because the main issue in contention between the parties was not ownership of the property but how much of the investment made by Defendant in constructing the property ought to be used in offsetting his rent to Plaintiff. To assist the Court in the resolution of this issue therefore, I directed an independent valuation report be conducted by the Architectural and Engineering Services Limited (AESL) under the Ministry of Works and Housing, and this report was submitted to the Court on 8th October, 2024. FACTS The parties entered into a tenancy agreement wherein Defendant was to construct nine (9) shops situated at Kaneshie with one to be occupied by Plaintiff while the remaining eight (8) was to be leased by Defendant for a period of thirty (30) years. Additionally, as part of the agreement Isabella Beatrice Odorkor Lamptey vs. James Tagoe 2 Defendant was to complete a three-bedroom self-contained home at Kasoa which Plaintiff had commenced at footing stage of construction, and this was to be completed on or before May 2019. The building at Kasoa was constructed up to roofing level however Defendant was unable to fully complete the construction works within the stipulated timeframe agreed between the parties. Subsequently, Plaintiff’s tenancy agreement for the rented apartment she occupied at Mataheko at the time also expired and she was compelled to move into the uncompleted structure in Kasoa sometime in June 2019. In 2022, some two years after Plaintiff was compelled to move into the Kasoa property, the Defendant had continued to fail and/or refuse to complete the three-bedroom building at Kasoa, and Plaintiff therefore asked Defendant to leave the construction site which Defendant duly complied with. Plaintiff further refused to renew the tenancy agreement for the eight shops rented out to Defendant which expired in 2022 since Defendant had been unable to complete the property at Kasoa as agreed. However since, Defendant had already carried out extensive work on the Kasoa property, he requested that a valuer ascertain the money due to him for the works already done on Plaintiff’s land and the amount used to offset the rent he owes for the shops before he vacates the rented shops. It is this issue that forms the main contention between the parties now. The parties cannot agree on what the actual value of the work done on the property by Defendant should be in order to more accurately determine the tune of indebtedness of both parties for same to be set off against the other. While Plaintiff relies on the value of the work done as at 2019, Defendant insists on the current market value to be applied to the work done since Plaintiff is also applying rent payable at the current market rates. ANALYSIS OF THE FACTS The law is trite that a party who asserts a fact assumes the responsibility of proving same. These primary rules of producing evidence have been provided for by the virtue of sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). In Ababio vs. Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: Isabella Beatrice Odorkor Lamptey vs. James Tagoe 3 “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 the evidential rules were summed up eloquently by her Ladyship Adinyira JSC where it was emphasised that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact…. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non- existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” It must however also be borne in mind that where a party makes an averment and that averment is not denied, no issue is joined and there is no need for the party making the averment to lead evidence on that averment to establish same. This position was also stated in Fori vs. Ayerebi [1996] GLR 627 SC and reiterated by Brobbey J (as he then was) in the case of Hammond vs. Amuah [1991] 1 GLR 89 (see also the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 890). Furthermore, where an opponent admits to a fact in issue, it is deemed that that fact or issue has been conceded and is no longer in contention. In such circumstances, the court can act on the admitted facts without further proof by the other party of the facts constituting the admissions. In Fynn vs. Fynn [2013-2014] SCGLR 727 at 738 the Supreme Court emphasised: “….in the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down the following salutary rule of law, namely that: ‘Where an adversary has admitted a fact Isabella Beatrice Odorkor Lamptey vs. James Tagoe 4 advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such an admission, which is an example of estoppel by conduct.’” (See also the learned jurist S.A. Brobbey (JSC retired) in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113 where he opined that the rationale for the rule on admissions is obvious because if a person admits or concedes to facts which are against his interests, there is no need to proceed further to prove those facts before such a person would be bound by the terms of those facts). Thus, flowing from the above, the following facts are clear and accepted in this matter since they are uncontested and/or admitted by both parties: 1) Plaintiff is the owner of both the nine shops at Kaneshie and the property at Kasoa; 2) Defendant is a tenant of eight out of the nine of the shops at Kaneshie; 3) Defendant was to construct the shops at Kaneshie and occupy same for a period of thirty years from 1st January 1992 to 1st January 2022; 4) Defendant commenced construction of the property at Kasoa and reached roofing but did not complete same; 5) Plaintiff has been in occupation of the property at Kasoa since 2019; and 6) Defendant is currently still in occupation of the eight shops at Kaneshie. Although the above facts of this matter are straightforward, I found the other details of the tenancy agreement between the parties quite unclear. For instance, what was the exact rent that was agreed to be paid by the parties for the thirty-year period? When exactly did Defendant commence work on the Kasoa property and when was he supposed to have completed same? Was the work done on the Kasoa property meant to serve as further consideration by Defendant for the rented shops or did it form part of the earlier agreement for the shop construction contained in the thirty-year period? The above obscurity in the details notwithstanding, I am sufficiently satisfied as the trier of fact that whatever be the case, some construction work has indeed unquestionably been done by Defendant on the Kasoa property from his own resources which ought to be valued and Defendant reimbursed for same by Plaintiff. Isabella Beatrice Odorkor Lamptey vs. James Tagoe 5 To that end, there have been three separate reports already submitted in respect of the Defendant’s work done in 2019. The first report was presented by Plaintiff at the rent control office without the input of Defendant, and the valuer, one Solomon Sackey assessed the value of the work done by Defendant as at 2019 to be Fifty Thousand, Five Hundred and Ninety-six Ghana cedis (GHC 50,596.00). Defendant also submitted a valuation report by one Jessica Elorm Attipoe, also without the input of Plaintiff, who valued the 2019 work and reviewed same to reflect 2023 values and assessed the work done to be worth One Hundred and Sixty-four Thousand, Seven Hundred and Thirty Ghana cedis and Fifty-Eight pesewas (GHC 164,730.58) as at 2023. Finally, there was a third report dated 19th January, 2023 by Architectural and Engineering Services Limited (AESL) under the Ministry of Works and Housing which was submitted to the Chief Rent Manager of the Rent Control office in which the value of the cost of work was stated as Forty-Nine Thousand, One Hundred and Forty-Two Ghana cedis and Twenty-Nine pesewas (GHC 49,142.29). Although the year of assessment was not expressly stated on the face of this AESL report submitted to the rent office, it is obvious that this report was based on the prices and value as at the year 2019. In light of these conflicting reports and values a final updated report dated 7th October 2024 was received from AESL per the directives of this Court, and the value of the work done by Defendant was assessed in that report as One Hundred and Fifty-Eight Thousand, Eight Ghana cedis and Ten pesewas (GHC 158,008.10) as at May 2024 and Sixty-One Thousand, Three Hundred and Eight-One Ghana cedis and Sixty-Nine pesewas (GHC 61,381.69) as at 2019. Given all the circumstances of this case, I have asked myself what would be the fairest outcome to both parties in this situation? After all, justice cannot be justice if it is done for one side alone, but must be done for both; and ideally, the role of the judge is not just to apply the law, but to as much as possible create a fair outcome that serves the best interests of the affected parties. Accordingly, upon reflection I do not think it would be fair to apply any rates as they exist today either by way of current rent rates or by way of the current construction value of the property. I believe in this case, the most reasonable and objective thing to do is to consider and apply what the parties would have been entitled to had both sides fulfilled their end of the bargain at the point in time they ought to have done so, rather than going by market values which prevail or exist at a later point in time. Isabella Beatrice Odorkor Lamptey vs. James Tagoe 6 This would ensure that either side is neither unjustly enriched nor unfairly disadvantaged, but as much as possible is placed in the position that they would have been in given the current circumstances. In other words, what position would the parties be in today, considering the real value of the work Defendant actually put in as at 2019? Would the amount owed by Plaintiff to Defendant for the work done in 2019 have been paid off by now by his occupancy in the property? These are the questions that I mulled over when considering the issue needed to be resolved between the parties which issue I have already outline above. As I have stated already, in the instant case, the Defendant indisputably did some construction work for Plaintiff in 2019. The most recent assessment of that work by an independent third party ie AESL valued the work at Sixty-One Thousand, Three Hundred and Eight-One Ghana cedis and Sixty-Nine pesewas (GHC 61,381.69) as at 2019. This means that this sum is the amount of money owed by Plaintiff to Defendant for the work done in 2019 at the value of the work as at that time. On the other hand too, the Defendant’s tenancy for the shops expired in 2022 and we are now in 2025. This means, Defendant has already occupied the shops for an additional three years and two months since the tenancy expired in January 2022. As at the time the matter was pending at rent control, it was found that as at September 2023, the Defendant owed rent arrears to the tune of Thirty-four Thousand, Five Hundred and Eighty-Six Ghana cedis (GHC 34,586). It is this same sum of GHC 34,586 owed as at September 2023 that Plaintiff is claiming per her second relief endorsed on her statement of claim. It is unclear if this amount is for all eight shops since this has not been made expressly clear from the facts by either party. However since that is the sum endorsed on Plaintiff’s own reliefs without more, I will work strictly with the said sum. The period indicated above gives a timeframe of 21 months from the time the tenancy expired on 31st December 2021 (i.e. from January 2022 till September 2023). By simple arithmetic therefore, the rent that was under consideration as at 2019 approximated One Thousand Six Hundred and Forty- Seven Ghana Cedis (GHC 1,647) a month since the said sum multiplied by 21 months will give the amount of Thirty-four Thousand, Five Hundred and Eighty-Seven Ghana cedis (GHC 34,587) (which is one cedi more than the sum of GHC 34,586 being claimed by Plaintiff). Isabella Beatrice Odorkor Lamptey vs. James Tagoe 7 Thus, applying this rate of One Thousand Six Hundred and Forty-Seven Ghana Cedis (GHC 1,647) a month, the said sum when multiplied by three years gives Fifty-Nine Thousand, Two Hundred and Ninety-Two Ghana cedis (GHC 59,292). This means that out of the Sixty-One Thousand, Three Hundred and Eight-One Ghana cedis and Sixty-Nine pesewas (GHC 61,381.69) owed by Plaintiff to Defendant as at 2019, Fifty-Nine Thousand, Two Hundred and Ninety-Two Ghana cedis (GHC 59,292) has been set off by the rent owed by Defendant from January 2022 till January 2025. This leaves a balance of Two Thousand and Eighty-Nine Ghana cedis (GHC 2,089) owed by Plaintiff to Defendant. However, since we are in March 2025 it would also be in order to assess and add this additional two months rent to the three years already assessed. Two months’ rent at One Thousand Six Hundred and Forty-Seven Ghana Cedis (GHC 1,647) a month gives Three Thousand Two Hundred and Ninety-Four Ghana Cedis (GHC 3,294). This amount deducted from the balance of Two Thousand and Eighty-Nine Ghana cedis (GHC 2,089) leaves One Thousand Two Hundred and Five Ghana Cedis (GHC 1,205), and since Defendant continues to remain in occupation, this means that Defendant currently owes Plaintiff arrears of GHC 1,205 for the months of February and March 2025. Plaintiff wants Defendant to vacate the shops immediately per her first relief and therefore seeks an order from this Court to that effect. I have already showed from the assessment above that Defendant currently owes Plaintiff arrears of GHC 1,205 and this would entitle Plaintiff to an order for ejectment and recovery of possession per section 17 of the Rent Act, 1963 (Act 220). Given the circumstances however, I will give the Defendant an additional two months to wrap up his business and/or other affairs within all the shops and vacate the premises on or before 31st May, 2025. The rent for these two additional months is to be paid at the same rate of One Thousand Six Hundred and Forty-Seven Ghana Cedis (GHC 1,647) a month together with the above-stated arrears owed on or before 1st May, 2025. This brings the total amount to be paid by Defendant to Plaintiff to Four Thousand Four Hundred and Ninety-Nine Ghana Cedis (GHC 4,499) by 1st May, 2025, and Defendant is to vacate the premises by 31st May, 2025. I will make no award of costs. Each party is to bear their own costs. SGD. Isabella Beatrice Odorkor Lamptey vs. James Tagoe 8 MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Isabella Beatrice Odorkor Lamptey vs. James Tagoe 9